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Kenney v. Industrial Com.

OPINION FILED JANUARY 24, 1983.

STUART D. KENNEY, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (RICKEY B. HARRIS ET AL., APPELLEES).



Appeal from the Circuit Court of Lake County, the Hon. Jack Hoogasian, Judge, presiding.

JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

The principal question in this appeal by the claimant, Stuart D. Kenney, is whether the statutory three-year limitations period for claims under the Workmen's Compensation Act was tolled during the minority of one who was injured after July 1, 1975. We answer that question in the affirmative and reverse both the Industrial Commission, which dismissed the claim as untimely filed, and the circuit court of Lake County, which confirmed the Industrial Commission.

Another question presented is whether the claimant is entitled to have any compensation payable to him increased by 50% because he was under 16 when the accident happened and was employed in violation of the State's child labor laws (Ill. Rev. Stat. 1975, ch. 48, par. 138.7(h)). The Industrial Commission, in view of its dismissal of the claim on the statute of limitations ground, did not reach this question of fact, and we therefore remand this claim to the Commission to decide whether the claimant was illegally employed. To assist the Commission in resolving this issue we will deal with two questions relating to it which the respondents have advanced. The first is whether the claimant raised this issue before the arbitrator; the second is whether the claimant should have been permitted to offer additional evidence before the Industrial Commission at the hearing on review.

THE STATUTE OF LIMITATIONS ISSUE

The claimant was born on August 23, 1960. During the summer of 1975, while he was still 14, and employed at a riding stable as a groom and barn hand, he was thrown out of a front-end loader on which he was working. He fell to the ground and fractured his wrist.

The accident occurred on July 11, 1975, but Kenney's application for adjustment of claim was not filed until 1979 when he was 18. The claim was dismissed, because, although the requisite notice of the accident had been given, the claim was filed more than three years after the date of the accident.

Whether the three-year time limitation on filing claims under the Workmen's Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.6(d)) was tolled by the claimant's minority is clearly a legal issue to be determined by this court; we are not bound by the Industrial Commission's decision on this question.

Ten days before the accident an amendment to the tolling provision of the Act became effective. It provided:

"In case of incompetency of the employee or any dependents of a deceased employee who may be entitled to compensation under the provisions of this Act, the limitations of time by this Act provided do not begin to run against such incompetent until a conservator or guardian has been appointed." (Emphasis added.) Ill. Rev. Stat. 1975, ch. 48, par. 138.6(c)(1).

A prior tolling provision which was in effect until 1975 applied in the case of the "mental" incompetence of employees (Ill. Rev. Stat. 1973, ch. 48, par. 138.6(c)(2)). The effect of the 1975 amendment was to eliminate "mental" and substitute "incompetency" for mental incompetence. The 1975 amendment left the tolling provision substantially similar to the one which prevailed prior to 1927 and which provided:

"In case an injured employee shall be incompetent at the time when any right or privilege accrues to him under the provisions of this Act, a conservator or guardian may be appointed pursuant to law, and may, on behalf of such incompetent, claim and exercise any such right or privilege with the same force and effect as if the employee himself had been competent and had claimed or exercised said right or privilege; and no limitations of time by this Act provided shall run so long as said incompetent employee is without a conservator or guardian." (Emphasis added.) (Smith's Ill. Rev. Stat. 1921, ch. 48, par. 145(h).)

We do not regard the differences in the pre-1927 and the post-July 1, 1975, tolling provisions as significant for the purposes of disposing of Kenney's claim.

The controlling precedent is Walgreen Co. v. Industrial Com. (1926), 323 Ill. 194, in which the pre-1927 tolling provision was applied to the claim of a minor. The court decided that the word "incompetent" as used in the then applicable statute included minors, that the public policy of Illinois was to guard the rights of minors carefully, and that the limitations of time provided by the Act did not run against a minor so long as he was without a guardian.

Even after the statute was amended in 1927, this court did not shun the reasoning it followed in Walgreen. In Ferguson v. Industrial Com. (1947), 397 Ill. 348, the court applied the 1927 amendment to the claim of a minor, holding that the substitution of the words "mentally incompetent" for the word "incompetent" in the earlier statute excluded minors from the tolling provision. It explained that its failure to follow Walgreen was because of the new wording and not because Walgreen had been erroneously decided. Johnson v. Industrial Com. (1972), 53 Ill.2d 23, also a claim by a minor injured while the post-1927 provision was in effect, ...


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